prevent cl0:,:·.:nwarranted W - Artists, Athletes... · The program may be of a commercial or...

identifying data deleted to prevent cl0:,:"·".:nwarranted invasion of ~rsonal privacy

PUBLTCCOPY

U.S. Department or Homeland Security u.s. Citi:1.cnship and Immigration Services AdministratiY(' Appeals Otlicc (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washinflton. DC 20529-2090

~. U.S. Citizenship ("'(.x,.~\ and Immigration W.tJ Services

DATE: JAN 1 0 2012 Office: CALIFORNIA SERVICE CENTER FILE:

INRE: Petitioner: Beneficiaries:

PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 I (a)(l5)(P)(iii) of the Immigration and Nationality Act, 8 U.S.C. § I 101 (a)(15)(p)(iii)

ON BEHALF OF PETITIONER:

INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office.

If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1 )(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen.

Thank you,

PerryRbew Chief, Administrative Appeals Office

www.uscis.gov

DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is

now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.

The petitioner filed this nonimmigrant petition seeking classification of the beneficiaries under section

IOI(a)(15)(p)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § llOl(a)(15)(p)(iii), as artists or

entertainers in a culturally unique program The petitioner is self-described as a martial arts production

company. It seeks to employ the beneficiaries as martial artists for a period of one year. The petitioner employed

the beneficiaries in P-I status at the time the petition was filed and requested that they be granted a change and

extension of status.

The director denied the petition, concluding that the petitioner: (1) failed to submit evidence that the beneficiaries

possess culturally unique skills as artists or entertainers or that all of their performances or presentations would be

culturally unique events; and (2) failed to submit a written consultation from an appropriate labor organization. In

denying the petition, the director observed that the submitted evidence did not establish how the beneficiaries'

discipline of Wushu or Liang Shan Kung Fu is a culturally unique art form, or that the martial arts meet the

applicable regulatory definition of "arts" for the purposes ofthis classification.

The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded

the appeal to the AAO for review. On appeal, counsel for the petitioner rejects the director's finding that "Wushu

competition is an athletic sports [sic 1 rather than a performance." In addition, counsel asserts that the director

incorrectly inferred that the beneficiaries would be teaching martial arts classes or judging martial arts

competitions. Counsel emphasizes that the petitioner seeks to employ the beneficiaries solely as performers in

culturally unique events and stated no other intention.

I. The Law

Section 101 (a )(15)(P)(iii) of the Act provides for classification of an alien having a foreign residence which

the alien has no intention of abandoning who:

(I) performs as an artist or entertainer, individually or as part of a group, or is an integral

part of the performance of such a group, and

(II) seeks to enter the United States temporarily and solely to perform, teach, or coach as a

culturally unique artist or entertainer or with such a group under a commercial or

noncommercial program that is culturally unique.

Congress did not define the term "culturally unique," leaving that determination to the expertise of the agency

charged with the enforcement of the nation's inunigration laws. By regulation, the Immigration and

Naturalization Service (now U.S. Citizenship and Immigration Services (USC IS)), defined the term at 8 C.F.R. §

214.2(p)(3):

Culturally unique means a style of artistic expression, methodology, or medium which is unique

to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.

The regulation at 8 C.F.R. § 2l4.2(p )(2)(ii) states that all petitions for P classification shall be accompanied by:

(A) The evidence specified in the specific section of this part for the classification;

(B) Copies of any written contracts between the petitioner and the alien beneficiary

or, if there is no written contract, a summary of the terms of the oral agreement

under which the alien(s) will be employed;

(C) An explanation ofthe nature of the events or activities, the beginning and ending

dates for the events or activities, and a copy of any itinerary for the events or

activities; and

(D) A written consultation from a labor organization.

The regulation at 8 C.F.R. § 214.2(p )(6)(i) further provides:

(A) A P-3 classification may be accorded to artists or entertainers, individually or as a group,

coming to the United States for the purpose of developing, interpreting, representing,

coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or

artistic performance or presentation.

(B) The artist or entertainer must be coming to the United States to participate in a cultural

event or events which will further the understanding or development of his or her art

form. The program may be of a commercial or noncommercial nature.

The regulation at 8 C.F.R. § 2l4.2(p)(6)(ii) states that a petition for P-3 classification shall be accompanied by:

(A) Affidavits, testimonials, or letters from recognized experts attesting to the authenticity of

the alien's or group's skills in performing, presenting, coaching, or teaching the unique

or traditional art form and giving the credentials of the expert, including the basis of his

or her knowledge ofthe alien's or group's skill, or

(B) Documentation that the performance of the alien or group is culturally unique, as

evidenced by reviews in newspapers, journals, or other published materials; and

(C) Evidence that all of the performances or presentations will be culturally unique events.

Finally, the regulation at 8 C.F.R. § 2l4.2(p )(3) defines "arts" as follows:

Arts includes fields of creative activity or endeavor such as, but not limited to, fine arts, visual

arts, and performing arts.

U. Discussion

A. Factual Background

The petitioner filed the Form 1·129, Petition for a Nonimmigrant Worker, on January 31, 2011. In a letter dated

January 28, 2011, the petitioner stated that its organization was formed to introduce Chinese Kung Fu to the

United States through professional level performance, to provide Kung Fu instruction for adults and children, and

to promote culture awareness through Kung Fu and "its unique culture background."

The petitioner indicates that it organizes and participates in Kung Fu performing events and activities in the Bay

Area and requires the services of excellent martial artists to provide a "first class Kung Fu performance." The petitioner indicated that the beneficiaries will serve as "guest stars" in its shows for a period of one year. The

petitioner further stated:

Wushu is of culturally unique essence. Directly derived from the traditional Chinese martial

arts, Wushu is exclusively choreographed for performance only. A national championship is

held in China every year. Each set ofWushu is evaluated and judged rigorously in a session of 1 minute and 20 seconds. For example, popular Wushu master _ had been national

champion in this event 8 years in a row, before he became a Hollywood star.

[The beneficiaries 1 will provide a temporary, culturally unique addition to the American

performing series ....

With respect to the beneficiaries' background and qualifications, the petitioner stated:

[The beneficiaries 1 specialty is Liangshan Kungfu, which is a traditional Kungfu from China.

Beneficiaries belong to the of one of the top Kung Fu

Academy in China. Founded by national top ten Wu Shu martial artist in China,

Liang Shan Kung Fu Academy has trained more than 200 top Wu Shu coaches in China. The team from Liang Shan Kung Fu Academy has won group championship in China's national

competition, such as Group Champion in Second National Ziwu, Shaolin, Mingjian Competition, Group Champion in National "Yucai Cup" Wu Shu Competition. Team from

Liang Shan Kung Fu has traveled overseas and performed in France, England and USA. In

addition, Liang Shan Kung Fu Academy's team also has won more than 20 individual national

champions in China ....

The petitioner stated that the beneficiaries, as members of Liang Shan Kung Fu Academy, "have been performing

culturally unique Wushu for a substantial period oftime."

The petitioner submitted copies of the beneficiaries' approval notices confmning their current P-I status. The

petitioner provided a certificate indicating that one of the beneficiaries was recognized for his performance at the

International Chinese Martial Arts Championship held in San Francisco in July 2010. With respect to the second

beneficiary, the petitioner submitted evidence that he received a first place award in Gun Shu at the 4th Annual

Wushu International Championships held in Ontario, Canada in November 2006.

The petitioner submitted a copy of its contractor agreement with the beneficiaries, which described the scope of

the proposed work as follows:

1. Contractor shall participate and perform on [the petitioner's 1 series productions ("Work").

A detailed schedule from February 9, 2011 to February 8,2012 is attached hereto as Exhibit

A. However, both parties agree that such list can be updated by [the petitioner 1 from time to

time at its sole discretion ....

2. Contractor will work under the direction of Company's President in __

productions ....

3. Contractor agrees to do photo sessions and video taping prior and during performances for

promotional purposes.

The petitioner indicated that it will pay the beneficiaries $120 for each performance.

The petitioner submitted a 2011 performance schedule which includes the following events during the requested

period of employment: Oakland Chinatown Chamber of Commerce Chinese New Year Celebration; Chinese

New Year Celebration; City of Cupertino Chinese New Year Parade; City of San Leandro Rotary Club; UC

Berkeley Chinese Martial Arts Tournament; Northern California Chinese Culture and Sports Association

Sporting Competitions; and "Wulin Cup" Martial Arts Contest at [the petitioning entity].

The petitioner provided screen shots from its public web site which provide information regarding its programs.

Based on the information provided, it is evident that the petitioner operates primarily as a martial arts school

specializing in instructional programs, rather than as a "production company" as it is described on the Form 1-129.

The petitioner did submit two certificates of appreciation indicating that the school participated in the Seventh

Annual Silicon Valley Moon Festival and in the tenth Annual Banquet of the Taiwanese Chamber of Commerce

of San Francisco Bay Area, held on January 22, 2005.

B. CulturaUy Unique Program

The first issue to be addressed is whether the petitioner satisfied the evidentiary requirements for a petition

involving a culturally unique program, as set forth at 8 C.F.R. § 214.2(p)(6)(ii). Specifically, the regulation at 8

C.F.R. § 214.2(p)(6)(ii) requires that the petitioner establish that the beneficiaries' performance or art form is

culturally unique through submission of affidavits, testimonials and letters, or through published reviews of the

beneficiary's work or other published materials. Regardless of which form of evidence is submitted, the evidence

must establish that the beneficiaries present, perform, teach or coach a style of artistic expression, methodology,

or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group

of per sons.

In a request for evidence ("RFE") dated February 3,2011, the director requested both forms of evidence, as well

as evidence that the beneficiaries are coming to the United States to participate in a cultural event or events that

will further the understanding and development of their art form. The director also requested that the petitioner

provide a more detailed description ofthe beneficiaries' proposed duties.

The petitioner's evidence will be discussed below.

1. Affidavits, testimonials or letters from recognized experts

The regulation at 8 C.F.R. § 214.2(p)(6)(ii)(A) requires the petitioner to submit affidavits, testimonials, or letters

from recognized experts attesting to the authenticity of the alien's or group's skills in performing, presenting,

coaching, or teaching the unique or traditional art form and giving the credentials of the expert, including the

basis of his or her knowledge of the alien's or group's skill.

The petitioner did not submit affidavits, letters or testimonials from recognized experts with its initial evidence. In

the request for evidence, the director advised the petitioner as follows:

Evidence of Authenticity of Culturally Unique Skills: The petitioner has not provided adequate

evidence to show that the beneficiaries have skills in a culturally unique art form. Therefore,

provide affidavits, testimonials or letters from recognized experts attesting in detail to the

authenticity of the aliens' skills in performing, presenting or teaching the unique or traditional art

form. Also provide the credentials of the expert, including the basis of his or her knowledge of

the aliens' skills. Provide evidence as to the expertise of the experts who will be attesting to the

authenticity of the aliens' skills. Furthermore, simply stating that the beneficiaries have certain

skills is not enough ....

The director also requested independent, objective documentary evidence that discusses the artistic aspects of

Liang Shan Kung Fu and documents the practice and performance of this martial art in artistic events or

productions, rather than athletic type competitions.

The petitioner submitted two letters in response to the RFE. The first letter was

that Liang Shan Kung Fu (also known as "Ziwumen" Kung

Fu) "is a traditional kungfu with long history." With respect to the beneficiaries, he states:

[The beneficiaries 1 have learned Liangshan Kung Fu for many years and both of them have

mastered this unique Kung Fu through their hard work. Because of their special skills in

performing Liang Shan Kung Fu, we have invited both of them as coaches to our students in

presenting and pertorming Liang Shan Kung Fu in shows.

[The beneficiaries] have perfonned as leading roles for our large scale Kung Fu show "Ziwu

Reincarnation", which is a show case of Liang Shan Kung Fu. As key perfonners in the show,

traveling both domestically and internationally for the p.erformances, both of them are critical to the major success of the show. Without their artistic talent and skills, we could not achieve this much success in spreading the spirit of Ziwumen Kung FuiLiang Shan Kung Fu, a type of

traditional Kung Fu worldwide.

_ concludes that the beneficiaries "have authentic talents and skills in unique and traditional martial arts."

_ letter was accompanied by a 2006 article from a Chinese website, ChinaCulture.org, which mentions

•••• as the dean of the Liangshan Kung Fu Academy, and notes that he organized a "large-scale wushu

drama 'Ziwu Rotates Around,'" which "shows the profoundness of Liangshan kung fu." The article indicated that

the show was set to tour in Europe, the United States and Australia.

The petitioner also submitted a letter from ••••• • states:

It is my opinion that [the beneficiaries] indeed have authentic skills in practicing, performing,

presenting and teaching unique and traditional martial arts. My opinion is based on my knowledge of [the beneficiaries'] achievements and qualifications, which are the two main

measures of one's ability to practice, perfonn, present, and teach unique and traditional martial

arts.

Based on my first-hand knowledge of [the beneficiaries], r conclude that they have been

practicing unique and traditional martial arts for a long period of time. I am aware of the fact

that they have been practicing martial arts for about 10 years. Based on their achievements in

practicing and performing martial arts, Masters were awarded certificates from Liang Shan Kung

Fu Academy as one oftheir researches [sic] in perfonning Liang Shan Kung Fu.

In addition, [the beneficiaries] perfonn unique Liang Shan Kung Fu in the show of "Ziwu

Reincarnation" worldwide. Liang Shan Kung Fu is a type of Kung Fu with long history and tradition and was selected as the Non-Physical Culture Legacy of China.

Finally, both of them have perfonned martial arts at the prominent events such as [one

beneficiary's] performing at the Closing and Opening Ceremonies of the Beijing Olympic and

[the other beneficiary's] performing at the Beijing People's Hall to memorizing the friendship

between China and Japan for 30 years.

Based on the foregoing, my conclusion is that [the beneficiaries] have authentic talents and skills

in nnique and traditional martial arts.

•

In response to the director's request for evidence that the field of Chinese martial arts meets the regulatory

definition of "arts" applicable to this classification, the petitioner referred uscrs to review the above-referenced

letters for additional evidence regarding Fu or wushu as an art form, and a copy of an article titled _

"by

In denying the petition, the director found that the submitted letters did not address the relevant issue of establishing whether the beneficiaries possess skills in a culturally unique style of artistic expression,

methodology, or medium, or, in short, an "art form." The AAO agrees.

The submitted letters are generalized in terms of describing how Wushu or Liang Shan-style Kung Fu, and the beneficiaries' specific skills in the discipline, qualifY as a culturally unique art form. Neither of the submitted

letters attests with any specificity to the unique cultural or traditional elements of the beneficiaries' performance of Kung Fu. Furthermore, the petitioner submitted little documentary evidence specific to the beneficiaries'

achievements, training, skills or employment history. For example, the record contains no independent evidence

of their participation in the "Ziwu Reincarnation" show or training and employment at the Liangshan Kung Fu

Academy. The only independent evidence submitted specific to the individual beneficiaries establishes that one

beneficiary participated in a Chinese martial arts toumament in California in 2010 and the other beneficiary

competed in a Wushu tournament in Canada in 2006. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici,

22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft afCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).

_ indicates that the beneficiaries are trained in Liangshan Kung Fu, have coached this discipline, and have

performed in his school's "Ziwu Reincarnation" show, but he makes no assertions regarding the cultural

uniqueness of this style of Kung Fu. Instead, he repeatedly refers to it as a "traditional" martial art. While he

refers to the beneficiaries' "artistic talents" he also notes that his academy produces many champions in national

competJtJons. Simply claiming that a beneficiary practices a "traditional" form of Kung Fu is insufficient. _ did not explain the unique culture elements of the beneficiaries' skills with any

specificity. USCIS need not accept primarily conclusory assertions. 1756, Inc. v. The Attorney General of the

United States, 745 F. Supp. 9, 18 (D.C. Dis!. 1990). As noted by the director, Mr. Song did not substantiate how Liang Shan Kung Fu qualifies as a culturally unique art form, or how it differs from other forms of

Chinese martial arts that are practiced worldwide.

_ letter also contains only generalized statements regarding the beneficiaries' "authentic skills" in

"traditional" martial arts without addressing the culturally unique elements of the beneficiaries' discipline. His

letter also provides inadequate information regarding the basis of his knowledge of the beneficiaries' skills .•. _ referred to his knowledge of their "achievements and qualifications" without explaining the basis for this

knowledge, and also claimed "first-hand knowledge" without further clarification as to when or where he gained

this knowledge. As noted above, the record is nearly devoid of any primary evidence of the beneficiaries'

achievements and qualifications, as the petitioner has submitted a single certificate or award for each individual.

The evidence of record does not corroborate_ statements regarding the beneficiaries' previous training,

performances, or achievements.

Further, while _ referred to "traditional" martial arts, he offered no further explanation regarding the

cultural uniqueness of the beneficiaries' skills or the Liang Shan style of Kung Fu. Again, the AAO emphasizes

that "traditional" skills must still comply with the definition of culturally unique at 8 C.F.R. § 214.2(p)(3), and

merely stating that a beneficiary's skills are traditional does not qualify as meeting the definition. Finally, the

petitioner submitted no evidence of the author's qualifications, such that he could be considered a "recognized

expert" in the beneficiaries' field.

The regulation at 8 C.F.R. § 214.2(p)(6)(ii) specifically requires "letters from recognized experts attesting to the

authenticity of the alien's or group's skills in performing, presenting, coaching, or teaching the unique or

traditional art form and giving the credentials of the expert, including the basis of his or her knowledge of the

alien's or group's skill." USCIS is, however, ultimately responsible for making the final determination regarding

an alien's eligibility for the benefit sought; the submission of expert opinion letters is not presumptive evidence of

eligibility. I The admissibility of and weight to be accorded expert testimony may vary depending on such factors

as the extent of the expert's qualifications, the relevance of the testimony, the reliability of the testimony and the

overall probative value to the specific facts at issue in the case. See Matter ofD-R-, 25 I&N Dec. 445, 460 n.13

(BIA 2011)(citing Fed. R. Evid. 702); see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) ("[E]xpert

opinion testimony, while undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but rather is

admissible only if'it will assist the trier of fact to understand the evidence or to determine a fact in issue. "').

Here, for the reasons discussed above, the expert opinion testimony is lacking in probative value, as the letters do

not assist USCIS in determining whether the beneficiaries in this matter engage in a style of artistic expression,

methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe,

or other group of persons. As noted by the director, at issue is not whether the beneficiaries are highly skilled in

martial arts, but whether they are skilled in a culturally unique art form.

Contrary to counsel's assertions on appeal, the director did not deny the petition "based on his assumption that

Wushu competition is an athletic sport." The director's decision included a discussion of the deficiencies of each

of the letters submitted to meet the evidentiary requirement at 8 C.F.R. § 214.2(p)(6)(ii)(A). Even if the director

I Letters may generally be divided into two types of testimonial evidence: expert opinion evidence and written testimonial evidence. Opinion testimony is based on one's well-qualified belief or idea, rather than direct knowledge of the facts at issue. Black's Law Dictionary ISIS (8th Ed. 2007) (defining "opinion testimony"). Written testimonial evidence, on the other hand, is testimony about facts, such as whether something occurred or did not occur, based on the witness' direct knowledge. ld. (defining "written testimony"); see also id at 1514 (defining "affirmative testimony").

Depending on the specificity, detail, and credibility of a letter, USCIS may give the document more or less persuasive weight in a proceeding. The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded simply because it is "self-serving." See. e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing cases). The Board also held, however: "We not only encourage, but require the introduction of corroborative testimonial and documentary evidence, where available." ld. If testimonial evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998).

had been fully persuaded that Wushu falls within the definition of "arts," the letters were not in compliance with

this regulatory requirement due to the lack of explanation regarding how the beneficiaries' skills are culturally

umque.

While the AAO acknowledges that Wushu or Kung Fu is a Chinese martial art, simply claiming that the

beneficiaries are skilled and well-qualified Wushu practitioners trained in China is not sufficient to demonstrate

his eligibility for this classification. Here, the two letters submitted cannot be deemed probative of the "culturally

unique" nature of the beneficiary's performance. As the petitioner submitted no other affidavits, testimonials or

letters from recognized experts, the petitioner has not satisfied the evidentiary requirement at 8 C.F .R.

§ 214.2(p)(6)(ii)(A).

2. Documentation that the performance of the alien or group is culturally unique

The regulation at 8 C.F.R. § 2l4.2(p)(6)(ii)(B) requires the petitioner to submit documentation that the

performance of the alien or group is culturally unique, as evidenced by reviews in newspapers, journals, or other

published materials.

The petitioner has submitted the above-referenced article titled

article from discusses

_ The regulation requires the petitioner to submit evidence that the beneficiaries' performance is

culturally unique, as evidenced by reviews in newspapers, journals or other published materials. The petitioner

has not submitted any published materials that mention the beneficiaries, and thus it has not satisfied this

criterion.

The director nevertheless did review the articles to determine whether they support a conclusion that Chinese

martial arts can be classified as a "style of artistic expression." The director noted that, while the author of "An

Introduction to Chinese Martial Arts" alluded to Wushu as an "art form," in several places, the article does not

articulate how Wushu is a style of artistic expression, methodology or medium. The AAO agrees with this

assessment. For example, the author indicates that "[c]orrect Chinese Wushu training improves physical ability,

health, and willpower; it gives an individual an excellent method of exercise, a personal art form, a competitive

sport, and a basis for self-defense and sparring." The author then goes on to discuss the martial origins of the

discipline, the expansion of martial arts to other countries, the enormous variety ofWushu styles present today,

and basic physical techniques that apply to all styles. The article does not discuss any culturally unique aspect of

Wushu or Kung Fu. The fact that Chinese martial arts originated in China does not equate to a finding that all

modern Kung Fu and wushu programs continue to offer "culturally unique" activities that fall within the

regulatory definition of "arts."

Again, counsel does not acknowledge the conclusions reached by the director based on his review of the

submitted evidence, but instead asserts that the director's decision was "based on his assumption that Wushu

competition is an athletic sport rather than a performance." Regardless, the regulation at 8 C.F.R. § 2l4.2(p)(6)(ii)(B) requires documentation that is specific to the individual beneficiaries and their performancc of

the claimed culturally unique art form. The petitioner did not submit any published materials pertaining to the

beneficiaries.

3. Evidence that all of the peiformances or presentations will be culturally unique events

In determining whether all of the beneficiaries' performances or presentations will be culturally unique events, the director emphasized that the petitioner had not provided sufficient evidence to show that the beneficiaries have

skill in performing a culturally unique style of artistic expression or endeavor. In addition, the director noted that

while the petitioner indicates that the beneficiaries will "perform in a series of [the petitioner's 1 events and

activities," a review of the petitioner's web site, as of March 20 II, reflected no upcoming performances at the

listed events. The director noted that the petitioner had provided no corroborating evidence that it has

"performance related contracts" as claimed. In addition, the director observed that, based on the information on

the petitioner's web site, the petitioner's school does not appear to be dedicated to the arts, but rather offers martial

arts instructional classes. The director questioned whether the petitioner regularly holds and produces "artistic

type entertainment events."

On appeal, counsel asserts that while the director appeared to infer that the beneficiaries would be teaching or

judging martial arts in the United States, the petitioner's sole purpose for hiring the beneficiaries is for culturally

unique performances at the events listed on their itinerary. Counsel argues that the lack of performance

information on the petitioner's website should not serve as conclusive evidence that no such performances will be

held.

Upon review, the AAO concurs with the director's conclusion. Counsel correctly asserts, however, that the

petitioner has consistently indicated that it seeks to employ the beneficiaries to perform or demonstrate Wushu at

the events listed, rather than as martial arts instructors, judges or competitors. The petitioner expressed its intent

to hire them "to fulfill performance related contracts" and to hire them "as entertainers not as athletes." If the

petitioner had established through submission of the required evidence that the beneficiaries' martial arts

performances and demonstrations are culturally unique, the martial arts performances listed in the itinerary could

have been considered culturally unique events. As to the director's doubts that such performances will actually

occur, the AAO notes that the petitioner could have strengthened its case by submitting the "performance-related

contracts" referenced, invitation letters from the organizations holding the events, or other evidence to corroborate

its itinerary. The record contains some evidence that the petitioner's school has participated in Chinese

celebrations or cultural events in the past.

Nevertheless, as discussed above, the petitioner failed to establish that the beneficiaries' performance of

Liangshan Kung Fu or wushu is culturally unique by submitting evidence to meet the regulatory requirement at 8

C.F.R. § 214.2(p)(6)(ii)(A) or 8 C.F.R. § 214.2(p)(6)(ii)(B).

C. Written Consultation from an Appropriate Labor Organization

The final issue addressed by the director was whether the petitioner provided a written consultation from a labor

organization, as required by 8 C.F.R. §§ 214.2(p )(2)(ii)(D) and 214.2(p )(7).

At the time of filing the petition, the petitioner submitted a consultation dated April 18, 2007. The consultation indicates that three unnamed members of Liang Shan

Kung Fu Academy meet the regulatory requirements for the pol visa classification. In the request for evidence

issued on February 3, 2011, the director advised the petitioner that this consultation does not name the beneficiaries of this petition, and specified the wrong visa classification. Therefore, the director instructed the

petitioner to obtain and submit a new consultation.

In response to the RFE, the petitioner provided a copy of counsel's letter to the AGV A requesting that the labor

union expedite issuance of the new consultation. Counsel for the petitioner indicated that he would submit the

consultation to USCIS inunediately upon receipt from the AGV A. The record shows that counsel subsequently submitted the AGVA consultation indicating no objection to the granting ofP-3 classification on March 18, 2011,

two days subsequent to the denial ofthe petition.

The AAO will withdraw this ground for denial of the petition. The record shows that the petitioner requested the new consultation when advised that its initial evidence was insufficient and made a good faith effort to obtain the

consultation prior to the due date for its RFE response. As the record now contains the required consultation, the

AAO finds that this requirement has been met.

III. Conclusion

The statute requires that the beneficiaries enter the United States solely to perform, teach, or coach as an artist

or entertainer under a "program that is culturally unique." Section 101(a)(15)(p)(iii)(I1) of the Act, 8 u.s.c. §

1l01(a)(15)(P)(iii)(II). To obtain classification of the beneficiaries under this section of the Act, the

petitioner must submit evidence that all of the beneficiaries' performances or presentations will be events that meet the regulatory definition of the term "culturally unique." 8 C.F.R. §§ 214.2(p)(3), 214.2(p)(6)(ii). The

petitioner failed to meet these evidentiary requirements. Accordingly, the appeal will be dismissed.

In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.

ORDER: The appeal is dismissed.

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